Ralph David Thomas v. State

• Court: Court of Appeals of Texas
• Decided: May 25, 2006
• Docket: 11-05-00029-CR
• Status: Published

Opinion

Opinion filed May 25, 2006

Opinion filed May 25, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00029-CR

                                 RALPH DAVID THOMAS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR29754

                                                                   O P I N I O N

Ralph David Thomas appeals from a conviction for the offense of criminal nonsupport.  Appellant challenges the trial court=s ruling on his motion to dismiss the indictment.  We affirm.

Background Facts

Appellant was ordered to pay child support in Midland County district court pursuant to a divorce decree.  In July 2004, appellant was indicted for the offense of criminal nonsupport in thirteen counts.  The State alleged in the indictment that appellant intentionally and knowingly failed to provide support that he could have provided and was legally obligated to provide for C.T. and Ne.T., his children younger than eighteen years of age, on or about September 2001 through March 2002.^[1]  The indictment alleged that the offense occurred in Midland County, Texas.  Appellant filed a motion to dismiss the indictment alleging that, at the time of the presentment of the indictment, appellant, his ex-wife, and his minor children did not reside in Midland County or in Texas.  The trial court denied appellant=s motion to dismiss the indictment.  Appellant entered a plea of guilty, and the trial court sentenced him to two years confinement in a state jail facility.  The trial court suspended the sentence and placed appellant on community supervision for a period of five years.

In his sole issue on appeal, appellant contends that the trial court erred in failing to dismiss the indictment because, at the time of the presentment of the indictment, appellant, his ex-wife, and his children did not reside in Midland County or in Texas.  In order to fully address appellant=s issue, we must determine if the State has jurisdiction over this offense and then determine if venue is proper in Midland County.

Jurisdiction

 An offense may be prosecuted in Texas only if Texas has territorial jurisdiction over the offense.  Section 1.04 of the Texas Penal Code lists several bases for territorial jurisdiction.  Two of these are relevant to this appeal.  First, Texas has jurisdiction over an offense if either the conduct or a result that is an element of the offense occurs inside this state. Tex. Pen. Code Ann. ' 1.04(a)(1) (Vernon 2003).  Second, Texas has jurisdiction over an offense that is based on an omission to perform a duty imposed on a defendant by a statute of this state.  Tex. Pen. Code Ann. ' 1.04(c) (Vernon 1003). 

Texas has territorial jurisdiction over this offense under either of the above sections.  In Texas, a person commits an offense if he intentionally or knowingly fails to provide support to his child who is younger than eighteen years of age or to his child who is the subject of a court order requiring the person to support the child.  Tex. Pen. Code Ann. ' 25.05(a) (Vernon 2003).   Appellant was ordered to provide support to his children in the divorce decree.  The divorce decree  was still a valid and existing judgment in Texas.  There had not been a subsequent judgment regarding appellant=s duty to pay child support entered in any other state.  The act of not paying the ordered child support resulted in a violation of a valid judgment of a Texas court.  AActs done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect.@  Strasshein v. Daily, 221 U.S. 280, 285 (1911).  Texas has an interest in protecting the viability of its judgments.  Roberts v. State, 619 S.W.2d 161 (Tex. Crim. App. 1981).  Thus, appellant=s failure to comply with the judgment occurred in Texas.

Further, criminal nonsupport is a crime of omission.  Ex parte Beeth, 154 S.W.2d 484, 485 (Tex. Crim. App. 1941).  Appellant had a statutory duty to support his children.  This offense clearly falls within the ambit of Section 1.04(c) because it is based on appellant=s omission to perform a statutory duty.  State v. Paiz, 817 S.W.2d 84 (Tex. Crim. App. 1991); Ex parte Boetscher, 812 S.W.2d 600, 603 (Tex. Crim. App. 1991).  Therefore, Texas has jurisdiction to prosecute this offense.

Venue

Venue is the place where a case may be tried.  Ex parte Watson, 601 S.W.2d 350 (Tex. Crim. App. 1980).   The rules of venue are set out in Chapter 13 of the Texas Code of Criminal  Procedure.

Two venue statutes are relevant to this appeal.  First, Article 13.16 of the Texas Code of Criminal Procedure provides that the offense of criminal nonsupport may be tried in the county where the offended spouse or child resides at the time the indictment is presented.  Tex. Code Crim. Proc. Ann. art. 13.16 (Vernon 2005).  Second, Article 13.01 of the Texas Code of Criminal Procedure provides that, if an offense is committed wholly or in part outside of Texas and Texas has territorial jurisdiction to prosecute the offense, the offense may be tried in any county in which the offender is found or in any county in which an element of the offense occurs.  Tex. Code Crim. Proc. Ann.  art. 13.01 (Vernon 2005).

Appellant contends that venue cannot be proper in Midland County under the special venue statute for criminal nonsupport because neither appellant=s ex-wife nor his children resided in Midland County at the time the State presented the indictment.  However, because appellant resided outside of Texas when he failed to provide support for his children, the special venue statute regarding offenses committed outside of Texas applies to the facts of this case.  Some special venue statutes apply to specific criminal offenses while others apply by virtue of the specific facts of the case.  Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003).

 Venue is proper in Midland County under the special venue statute relating to offenses committed in part outside of Texas.  See Roberts, 619 S.W.2d at 164.  The judgment issued by the Midland County district court obligated appellant to pay child support.  That judgment has not been modified or transferred to any other court.  Appellant failed to pay child support under that judgment; thus, an element of the offense of criminal nonsupport was committed in Midland County. 

Conclusion

Texas has territorial jurisdiction to prosecute appellant for the offense of criminal nonsupport.  Venue is proper in Midland County.  The trial court did not err in denying appellant=s motion to dismiss the indictment.  We overrule appellant=s sole issue. 

We affirm the judgment of the trial court.

RICK STRANGE

JUSTICE

May 25, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.

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^[1]In the divorce decree, appellant was ordered to provide child support for his four children N.T., J.T., Ne.T. and C.T. Appellant was  indicted only for failing to provide support for Ne.T. and C.T.  N.T. and J.T. were over the age of eighteen at the time the State presented the indictment.